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PROPOSED SECTIONS

SUBCHAPTER D. Health Group Cooperatives

28 TAC §§26.401 - 26.405, 26.407 - 26.411

1. INTRODUCTION. The Texas Department of Insurance proposes amendments to Subchapter D, §§26.401 - 26.405, and 26.407 - 26.411 concerning the establishment of, and provision of health benefit plan coverage to, health group cooperatives pursuant to Insurance Code, Title 8, Chapter 1501. The proposed amendments implement Senate Bill (SB) 805, 79th Legislature, Regular Session, which revised the standards by which carriers provide group health benefit plan coverage to health group cooperatives comprised of small or large employers. SB 805 enacted §1501.0575, making participation by health benefit plan issuers in health group cooperatives generally voluntary. The bill also amended §1501.0581 to provide that a health group cooperative may be composed of small employers or large employers, but not both; and that a health group cooperative consisting only of small employers is not required to allow a small employer to join the cooperative under certain statutorily specified conditions and so long as the commissioner has been timely notified of the cooperative's election. The proposed amendments are necessary to address changes to requirements governing the formation and operation of health group cooperatives and the obligations of insurance companies and health maintenance organizations (HMOs)-hereinafter collectively "carriers"-that issue health benefit plan coverage for these entities.

The proposed amendments to §26.401 add subsection (e), which requires that organizational documents otherwise required to be filed under the section include notification about whether the health group cooperative elects to restrict membership to 50 eligible employees. The proposed amendments also make conforming changes to Insurance Code references based on the enactment of the nonsubstantive code revision by the 78th Legislature, Regular Session.

The proposed amendments to §26.402 make changes to provisions addressing authorized membership of a health group cooperative and add a new subsection (d) to conform the section to Insurance Code §1501.0581(a) - (c) and (o) - (p), as amended by SB 805.

The proposed amendment to §26.403 provides that a health group cooperative may offer other ancillary products and services, in accord with provisions of Insurance Code §1501.058, relating to powers and duties of cooperatives.

The proposed amendments to §26.404 provide that a health group cooperative is considered a large employer for all purposes of Insurance Code, Title 8, Chapter 1501 and associated rules, unless it has elected to limit participation in the cooperative to 50 eligible employees, in which case it is considered a small employer for all purposes of Insurance Code, Title 8, Chapter 1501 and associated rules, including guaranteed issuance of coverage.

The proposed amendments to §26.405 make necessary conforming changes to Insurance Code references based on nonsubstantive additions to and corrections in enacted codes pursuant to HB 2018, 79th Legislature, Regular Session.

The proposed amendment to §26.407(a) requires a carrier to make an informational filing with the commissioner concerning intended offers of coverage to a cooperative not later than 30 days before the initial open enrollment period for the cooperative. The proposed amendment to §26.407(b) revises the specific updated information the carrier must provide as part of its §26.407(a) filing with the department concerning its offer of coverage to the cooperative.

The proposed amendments to §26.408 provide that, subject to the limitations of §26.411 addressing health carrier service area provisions, a health carrier may elect not to offer or issue coverage to health group cooperatives or may elect to offer or issue coverage to one or more health group cooperatives of its choosing. The proposed amendments also clarify that a health carrier must comply with the specified guaranteed issuance requirements in offering and issuing coverage to health group cooperatives that have made the election to limit participation to 50 eligible employees.

The proposed amendments to §26.409 make necessary conforming changes to Insurance Code references, including elimination of references to repealed provisions, based on the enactment of the nonsubstantive code revision by the 78th Legislature, Regular Session.

The proposed amendments to §26.410 make necessary changes to reflect the proposed revision to the caption for §26.407 and also make conforming changes to Insurance Code references based on the enactment of the nonsubstantive code revision by the 78th Legislature, Regular Session.

The proposed amendments to §26.411 make necessary conforming changes to Insurance Code references based on the enactment of the nonsubstantive code revision by the 78th Legislature, Regular Session.

SB 805 has eliminated the need for §26.412 by directing a carrier to treat a health group cooperative either as a large employer or as a small employer under the refusal-to-renew provisions of Insurance Code §1501.063. For this reason, the department has proposed the repeal of §26.412, which is published e lsewhere in this issue of the Texas Register .

2. FISCAL NOTE . Ana Smith-Daley, Acting Associate Commissioner of Life, Health, and Licensing, has determined that for each year of the first five years the proposed amendments to sections will be in effect there will be no fiscal impact to local governments as a result of the enforcement or administration of the rule. There will be no measurable effect on local employment or the local economy as a result of the proposal.

3. PUBLIC BENEFIT/COST NOTE. Ms. Smith-Daley has determined that for each year of the first five years the amendments to the sections are in effect, the public benefits anticipated as a result of the proposed amendments to the sections will be facilitation of the creation of health group cooperatives, making employer group coverage more affordable and accessible than it might otherwise be if the employers were purchasing the coverage individually. The proposed amendments, as part of a regulatory effort to encourage employers to continue to provide health coverage for their employees, may also result in coverage for previously uninsured employees. Any costs to persons required to comply with these proposed amendments for each year of the first five years the proposed amendments would be in effect are the result of the enactment of SB 805 and not the result of the adoption, enforcement, or administration of the proposed amendments. There is no anticipated difference in cost of compliance between small and large businesses.

The department will consider the adoption of the proposed amendments in a public hearing under Docket Number 2629, scheduled for9:30 a.m.onDecember 1, 2005, in Room 100 of the William P. Hobby, Jr. State Office Building,333 Guadalupe Street,Austin,Texas.

5. STATUTORY AUTHORITY. The amendments are proposed under the Insurance Code §§1501.010, 1501.058, 1501.0581, and 36.001, and SECTION 7 of SB 805 as enacted by the 79th Legislature, Regular Session. Section 1501.010 authorizes the commissioner of insurance to adopt rules as necessary to implement Chapter 1501. Section 1501.058 requires compliance with federal laws applicable to cooperatives and health benefit plans issued through cooperatives, to the extent required by state law or rules adopted by the commissioner. Section 1501.0581 requires a carrier to make an informational filing with the commissioner concerning intended offers of coverage to a cooperative and requires that the commissioner by rule prescribe the form and the time of the filing. SECTION 7 of SB 805 requires the commissioner, not later than January 1, 2006 , to adopt rules under §1501.010 as necessary to implement the change in law made by SB 805. Section 36.001 provides that the Commissioner of Insurance may adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state.

6. CROSS REFERENCE TO STATUTE. The following provisions are affected by this proposal: Insurance Code Chapter 1501,

§§1501.0575, 1501.058, 1501.0581 and 1501.063

7. TEXT.

§26.401. Establishment of Health Group Cooperatives.

(a) - (c) (No change.)

(d) On receipt of a certificate of incorporation or certificate of authority from the secretary of state, the health group cooperative shall comply with Insurance Code § 1501.056 [ Article 26.14(b) ] by filing notification of the receipt of the certificate and a copy of the health group cooperative's organizational documents with the Filings Intake Division, Mail Code 106-1E, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. The organizational documents shall demonstrate the health group cooperative's compliance with Insurance Code §§ 1501.058, 1501.059 and 1501.061 [ Article 26.15 ].

(e)A health group cooperative electing to restrict its membership to 50 eligible employees pursuant to Insurance Code §1501.0581(o) must include that election in the organizational documents filed pursuant to subsection (d) of this section.

(f) [ (e) ] The board of directors shall , by March 1 of each year, file [ annually ] with the department a statement of all amounts collected and expenses incurred for each of the preceding three calendar years. The board shall make the annual filing [ shall be made ] on Form Number HGC-1, which [ and ] can be obtained from the Texas Department of Insurance, Filings Intake Division, MC 106-1E, P.O. Box 149104, Austin, Texas 78714-9104 , as well as [ . The form can also be obtained ] from the department's internet web site at www.tdi.state.tx.us. The board [ It ] shall file Form Number HGC-1 [ be filed ] with the Filings Intake Division, Mail Code 106-1E, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104.

(g) [ (f) ] The provisions of this subchapter shall not be construed to limit or restrict an employer's access to health benefit plans under this chapter or Insurance Code Chapter 1501 [ 26 ] .

§26.402. Membership of Health Group Cooperatives.

(a) The membership of a health group cooperative may consist only of small employers or only of large employers, but may not [ may, at the option of the health group cooperative, ] consist of both small and large employers.

(b) To be eligible to arrange for coverage pursuant to Insurance Code §1501.058(a)(1) [ Article 26.15 (a)(1) ] a health group cooperative must, at the end of its initial open enrollment period, have at least ten participating employers. Thereafter, if the health group cooperative does not, at any time, have at least ten participating employers, to maintain eligibility for coverage the health group cooperative must add additional members by the end of the next open enrollment period to maintain at least ten participating employers. If, by the end of the next open enrollment period the health group cooperative does not have at least ten participating employers, the health carrier may elect to immediately cease providing coverage to the health group cooperative.

(1) shall allow any small employer to join a [ the ] health group cooperative that consists of only small employers and, during the initial and annual open enrollment periods, enroll in health benefit plan coverage; and

(2) may allow a large employer to join a [ the ] health group cooperative that consists of only large employers and, during the initial enrollment and annual open enrollment periods, enroll in health benefit plan coverage.

(d) A health group cooperative that has elected to limit membership to 50 employees and has filed notification with the department as required by §26.401(e) of this subchapter (relating to Establishment of Health Group Cooperatives) may decline to allow a small employer to join the cooperative if, after the small employer has joined the cooperative, the total number of eligible employees employed on business days during the preceding calendar year by all small employers participating in the cooperative would exceed 50.

(e) [ (d) ] A health group cooperative may not use risk characteristics of an employer or employee to restrict or qualify membership in the health group cooperative.

(f) [ (e) ] An employer's participation in a health group cooperative is voluntary, but an employer electing to participate in a health group cooperative must, through a contract with the health group cooperative, commit to purchasing coverage through the health group cooperative for two years, except as provided for in subsection (g) [ (f) ] of this section.

(g) [ (f) ] A contract between an employer and a health group cooperative must allow an employer to terminate without penalty its health benefit plan coverage with a health group cooperative before the end of the two year minimum contractual period required by subsection (f) [ (e) ] of this section if it can demonstrate to the health group cooperative that continuing to purchase coverage through the cooperative would be a financial hardship in accordance with subsection (h) [ (g) ] of this section.

(h) [ (g) ] The contract between an employer and a health group cooperative may define what constitutes a financial hardship for the purposes of subsection (g) [ (f) ] of this section. If the contract does not define the term, an employer may demonstrate financial hardship if it can show that at the end of the immediately preceding fiscal quarter, or upon receipt of notice of a rate increase, the premium cost to the employer, as a percentage of the employer's gross receipts, increased by a factor of at least .50.

§26.403. Marketing Activities of Health Group Cooperatives.

(a) - (d) (No change.)

(e) A health group cooperative may offer other ancillary products and services to its members that are customarily offered in conjunction with health benefit plans.

§26.404. Health Group Cooperative's Status as Employer.

(a) Except as provided by subsection (b) of this section, a [ A ] health group cooperative is considered a large [ single ] employer for all [ the ] purposes of Insurance Code Chapter 1501 and this chapter [ benefit elections and other administrative functions ] .

(b) A health group cooperative that is composed of only small employers and that has elected to limit participation in the cooperative to 50 employees is considered a small employer for all purposes of Insurance Code Chapter 1501 [ 26 of the Insurance Code ] and this chapter , including guaranteed issuance of coverage .

[ (c) A health group cooperative that is composed of small and large employers is considered a small employer in relation to the small employer members for all purposes of the Insurance Code and this chapter. A health group cooperative may elect to extend to all of the large employer members of the health group cooperative the protections of Chapter 26 of the Insurance Code and this chapter. However, unless a contract between a health group cooperative and a health carrier specifies otherwise, this election does not entitle the large employer members to guaranteed issuance of coverage as set forth in Article 26.21(a) of the Insurance Code or §26.8 of this title (relating to Guaranteed Issue; Contribution and Participation Requirements). ]

§26.405. Premium Tax Exemption for Previously Uninsured.

(a) In accordance with Insurance Code §1501.0581(g)(4) [ Article 26.14A of the Insurance Code ] , a health carrier providing coverage through a health group cooperative is exempt from premium tax and retaliatory tax for two years for premiums received for a previously uninsured employee or dependent. The two - year period for the exemption begins upon the first date of coverage for the previously uninsured employee or dependent.

(b) For the purposes of this section and Insurance Code §1501.0581(g)(4) [ Article 26.14A of the Insurance Code ] , a previously uninsured employee or dependent is an employee or the dependent of an employee of an employer member of a health group cooperative that did not have creditable coverage for the 63 days preceding the effective date of coverage purchased through the health group cooperative.

(a) A health carrier that intends to [ wishes to offer or ] issue coverage to a health group cooperative [ cooperatives ] shall file with the commissioner, not later than 30 days prior to the initial open enrollment period for the cooperative [ in accordance with subsection (b) of this section ], information concerning the health carrier's offer of coverage to the cooperative [ indicating that it is available to offer or issue health benefit plans to health group cooperatives ]. The health carrier shall submit this filing to the Filings Intake Division, Mail Code 106-1E, Texas Department of Insurance, P. O. Box 149104 , Austin , Texas 78714-9104 or 333 Guadalupe, Austin , Texas , 78701 .

(b) A filing required by subsection (a) of this section shall include:

(1) the name of the health carrier;

(2) the name, address, and telephone number or other contact information of the health group cooperative to which the health carrier intends to offer coverage [ a designation of whether or not the health carrier intends to offer or issue health benefit plans to health group cooperatives ];

(3) the county or expanded service area in which [ a description, by county, of the health group cooperative basic service area, which is the area in which ] the health carrier intends to offer coverage to the health group cooperative [ is offering or issuing health benefit plans to health group cooperatives ];

[ (4) if applicable, the extended service areas approved pursuant to §26.411 (relating to Service Areas for Carriers Offering Coverage Through a Health Group Cooperative), in which the health carrier is currently available to offer or issue heath health benefit plans to health group cooperatives; ]

[(5) if applicable, information identifying, by county, the health group cooperative(s) that are currently doing business with the health carrier in each geographic service area or expanded service area; ]

(4) [ (6) ] any limitations concerning the number of participating employers or employees in a health group cooperative that the health carrier is capable of administering;

(5) [ (7) ] the health benefit plan filed for use by the health carrier as a product available to health group cooperatives, or when appropriate pursuant to subsection (c) [ (d) ] of this section, reference to a previously approved form, including the form number and date of approval; and

(6) [ (8) ] any other information requested by the department .

[ (c) A health carrier shall update a filing required by subsection (a) of this section as necessary to include new counties or extended service areas in which the health carrier wishes to offer or issue coverage to health group cooperatives. If the health carrier has agreed to provide coverage to a particular health group cooperative at the time of updating the certification, the health carrier shall identify the health group cooperative consistent with subsection (b) of this section. ]

(c) [ (d) ] The form filing required by subsection (b)(5) [ (b)(7) ] of this section shall comply, as appropriate, with all applicable filing requirements under Chapter 3 of this title (relating to Life, Accident and Health Insurance and Annuities) or Chapter 11 of this title (relating to Health Maintenance Organizations).

[ (e) A health carrier that has not received approval of the health benefit plan identified in subsection (b)(7) of this section may not offer coverage to a health group cooperative. ]

§26.408. Issuance of Coverage to Health Group Cooperatives.

(a) Subject to the limitations identified in §26.411 of this subchapter (relating to Service Areas for Health Carriers Offering Coverage Through a Health Group Cooperative) [ §26.407 of this title (relating to Health Carrier Designation As Health Group Cooperative Carrier) ], a health carrier may elect to not offer or issue coverage to health group cooperatives or may elect to offer or issue coverage to one or more health group cooperatives of its choosing [ that has made a filing with the commissioner indicating that it is offering or issuing small employer health benefit plans to health group cooperatives shall provide coverage to a health group cooperative that requests coverage in the health carrier's basic geographic service area for health group cooperative business, as filed pursuant to §26.407 of this title ].

(b) Notwithstanding subsection (a) of this section, a health carrier must comply with the guaranteed issuance requirements of Insurance Code Chapter 1501 and this chapter with respect to offering and issuing coverage to a health group cooperative that:

(1) consists of only small employers;

(2) has elected to restrict membership in the cooperative to 50 employees; and

(3) has notified the department consistent with §26.401(e)of this subchapter (relating to Establishment of Health Group Cooperatives). [ A health carrier may decline to offer coverage to a health group cooperative if the health carrier is: ]

[ (1) already providing coverage to a health group cooperative in the same county; or ]

[ (2) actively engaged in assisting an entity with the formation of a health group cooperative. A health carrier is actively engaged in assisting an entity with the formation of a health group cooperative if the health carrier has associated with the entity for the purpose of forming a health group cooperative and the parties have signed a letter of agreement that evidences that the entity intends to form a health group cooperative with the assistance of the health carrier and intends to purchase coverage from the health carrier. This exception is available for no more than 60 days from the date of the letter. This exception period cannot be extended, nor can additional letters of agreement between the parties have the effect of extending this exception period. ]

[ (c) Subject to the limitations identified in §26.407 of this title, a health carrier that is providing coverage to an employer through a health group cooperative must provide coverage to any employee that elects to be covered under a health benefit plan that is offered through the health group cooperative. ]

(14) coverage of contraceptive drugs and devices as required by Insurance Code §§1369.101 - 1369.109 [ Article 21.52L ] and §21.404(3) of this title (relating to Underwriting);

(15) coverage of diagnosis and treatment affecting temporomandibular joint and treatment for a person unable to undergo dental treatment in an office setting or under local anesthesia as required by Insurance Code Chapter 1360 [ Article 21.53A ];

(27) [ (28) ] limitations or restrictions on copayments and deductibles imposed by §11.506(2)(A) and (B) of this title (relating to Mandatory Contractual Provisions: Group, Individual and Conversion Agreement and Group Certificate);

§26.4 10 . Expedited Approval for Plans Offered Through a Health Group Cooperative.

(a) Unless a health carrier has identified a previously approved health benefit plan in the filing required by §26.407(b)(7) of this title (relating to Health Carrier Filing Prior to Issuance of Coverage to a Health Group Cooperative [ Health Carrier Designation As Health Group Cooperative) ] , the health carrier must file for approval a health benefit plan that will be offered to a health group cooperative and shall clearly indicate in the filing that the health benefit plan is to be offered to a health group cooperative and is subject to review under this section.

(b) A health benefit plan subject to review under this section and filed with the department by an insurer may be filed as a file and use form consistent with Insurance Code §§1701.051 - 1701.059 and §1701.101 - 1701.103 [ Article 3.42(c) ] and §3.5(a)(2) of this title (relating to Filing Authorities and Categories).

(c) An insurer that does not elect to file for approval under subsection (b) of this section shall file the form for approval consistent with Insurance Code §1701.051 and §1701.054 [ Article 3.42(d) ] and §3.5(a)(1) of this title. The department shall approve or disapprove the filing within 40 calendar days of receipt of the complete filing.

(d) (No change.)

§26.411. Service Areas for Health Carriers Offering Coverage Through a Health Group Cooperative.

(a) - (b) (No change.)

(c) A health carrier may apply for an expanded service area that includes less than the entire state by submitting an application for approval to the Filings Intake Division, Mail Code 106-1E, Texas Department of Insurance, P. O. Box 149104 , Austin , Texas 78714-9104 or 333 Guadalupe, Austin , Texas , 78701 . The health carrier may begin using the expanded service area upon approval or 60 days after the day the application is received by the department unless the application is disapproved by the department within that time. The application must include:

(1) - (2) (No change.)

(3) service areas by ZIP Code shall be defined in a non-discriminatory manner and in compliance with the Insurance Code §§544.001 - 544.004 [ Articles 21.21-6 ] and 544.051 - 544.054 [ 21.21-8 ] ; and